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they wanted, and found a mode of supplying their own wants. They thought that succeeding generations could do the same. Alas! it is not so; for it is clear, from the wild debating of the present day, that on the most essential and important topics there is the greatest difference of opinion as to what we now want; and, if this is ever made clear to the majority, we have then to become antiquarian, and consider our forefathers' ways, and next whether our unborn children will not require the protection of the rules of our defunct progenitors.
The important matter relating to the title to real property and bankruptcy, which have formed the subject of parliamentary discussion, will be found discussed at length elsewhere in our pages this quarter.
Before our next number appears a new ministry will possibly be in office. Sir Richard Bethell may perhaps have to undertake some genuine conveyancing reforms. We shall then have three learned reformers at work on this and other important legal amendments. Those who have perused our Art. xiv. will see what Sir Hugh attempted. But Sir Fitzroy introduced (after a continuous parade of what he was about to do) at the last moment a batch of seven bills. With these doings the names of the three knights-at-law will be remembered perhaps as, in 1808, were certain three knights-of-war.* Some of our older readers will recollect a jingle then commonly sung in the streets, and which we have heard thus parodied :
"Sir Richard and Sir Fitzroy, Sir Fitzroy and Sir Hugh,
Sir Richard is a lawyer, but as for the other two,
Lord Brougham has again brought in his bill for extending his act of 1851 (Evidence of Parties) to criminal cases, at the option of the defendant. It was opposed by some of the law lords, upon this ground mainly, that whoever refused the benefit given, of electing to be examined, would be presumed to decline, because he was apprehensive of the effects of a cross-examination by the prosecutor. It is needless to observe that the case is very rare indeed, of a person not conscious of guilt, only shrinking from examination because deficient in acuteness, or courage, or presence of mind; and that the case is equally rare of a guilty person trusting to his courage and dexterity for defeating a cross-examination. The objection, therefore, really arises from a disposition to favour the escape of the guilty rather than provide for the safety of the innocent, to whom the fullest examination must always prove advantageous. A remarkable instance occurred the very day after this discussion, of the gross injustice which may be caused by the mouth of one party being closed while the other is fully heard. A petition was presented, setting forth that a clerk in a trading-house had been convicted and suffered six months' imprisonment for a fraud, *Sir Arthur Wellesley, Sir Harry Burrard, and Sir Hew Dalrymple, "Sir Arthur and Sir Harry, Sir Harry and Sir Hew,
Sir Arthur was a brave knight, but as for the other two,
only proved by the testimony of a party in opposition to the firm; and the petitioner's attorney, having acted in league with the prosecutor, had subsequently been convicted of fraud and forgery, while the attempt to proceed against the perjured witness failed, by his having fled after a fraudulent bankruptcy. This, no doubt, must be regarded as an extreme case, and one of rare occurrence; but we have the high authority of Mr. Stuart Wortley, when recorder of London, who, though averse to Lord Brougham's Evidence of Parties' Bill in 1851, and giving the reasons why he could not support that great change in the law of procedure, stated that, if it was adopted, there might be an extension of it to criminal cases, as his own judicial experience had brought him acquainted with repeated cases, in which injustice would have been prevented by the examination of one party as well as the other.
Some of the learned judges are understood to consider that the measure should be adopted in all cases where the real prosecutor is called as a witness; that to these cases the examination of the defendant should be confined, and that it should be excluded in all cases other than misdemeanour. In fact, cases of misdemeanour are almost the only ones in which the real prosecutor is examined, and this alteration may be made when the bill is re-introduced.
The subject is of great magnitude, but the arguments are within a very small compass. We feel, or affect, great repugnance to a party accused of a crime being examined even voluntarily; but let him only be in misfortune, we allow him to be examined whether he will or no, and compel him to answer questions with the certainty that all he says, and also all his refusals to answer, may be given in evidence against him, on a charge it may be of felony, as well as misdemeanour. A bankrupt, or insolvent, must answer all questions put to him by his creditors, and his answers may not only cause his conviction in another court, but his punishment by the court where he is interrogated.
Nor is this the only inconsistency and caprice of our rules of procedure. Observe the distinction taken on this head, from the form of the proceeding, the substance being exactly the same. Under the new law of evidence, all parties may be examined, both voluntarily and compulsorily, on charges of the grossest frauds, the foulest conspiracy, the most outrageous violence, if the form of the proceeding is an action. Surely it is now too late to refuse extending the new act to prosecutors also, without which extension this important amendment of our law remains imperfect in a very essential respect.
Sir Joseph Arnould, as many of our readers will with us rejoice to know, has been appointed one of the puisne judges of the supreme court at Bombay. It is always dangerous to predict with certainty of any man that he will make a good judge, or we should prophesy it of Sir Joseph Arnould without hesitation. Mr. Arnould was well known in the profession as a learned and sound lawyer, rather than one over
whelmed with junior business; and it speaks well for the discrimination of the authorities who have given him the appointment at Bombay, that they have known how to fix on a lawyer whose acquirements render him the right man for the preferment in question, though his name perhaps has not been among those most popular with attorneys, or very familiar to the readers of the newspaper Nius Prius reports.
The new judge has been living in a time of great legal reform in England, and has associated with those who have remodelled and renovated the procedure of our English courts. He knows therefore the principles of true reform in the matter. He will, it is to be hoped, bring his experience to bear on the new system to which he has removed. Mr. Arnould's work on marine insurance (a new edition of which we have recently seen) is an important contribution to legal literature, and affords an excellent example of a learned law-book in which scientific treatment and a practical object are alike observed. In America, where our really good law treatises are certain of being reprinted, "Arnould on Marine Insurance" has already passed through three editions.
Sir Joseph Arnould was entered at Charterhouse in 1828, and then proceeded to Oxford, and became a scholar of Wadham. He took his degree in 1836, and, achieving high honours in classics, became a fellow of his college in 1838. In 1841 he was called to the bar, having been a pupil of Sergeant Scriven and the present Mr. Justice Hill. He was a member of the Surrey sessions and the home circuit. And is an eminent example of a man who can combine the knowledge and practice of his profession with literary tastes and pursuits.
A disgusting and humiliating spectacle is being now exhibited in the city of London. A certain number of members of the bar are condescending to canvass, advertise, and puff themselves, for the purpose of procuring their election for the judgeship vacated by the death of Mr. Prendergast. Under such a system, and through such means, it is impossible for any barrister of standing or repute, or any gentleman having self-respect, to aspire to the office.
We trust the electors may have the good sense to reject all the pushing and canvassing candidates, and select, under proper advice, a really fit man for the office in question.
A commission has been appointed to report on the subject we lately discussed at length, that of providing in the metropolis proper courts of law on a suitable site. The commissioners are Sir J. T. Coleridge, Vice-chancellor Page Wood, Sir G. C. Lewis, Lord Wynford, Dr. Phillimore, and Mr. John Young.
Another commission (consisting of Sir John Awdry, the Earl of Devon, and Mr. Jebb) is appointed to report on the laws, civil and ecclesiastical, in Jersey-(Vid ante, Art. II).
VOL. VII. NO. XIII.
A return has just been made by the House of Lords, of the condi tion of business transacted and pending in the court of divorce: the arrears are frightful. It was known that the constitution of the court was inadequate for its functions, and the remedy was easy of invention and application, but the government was indifferent to the practical and indispensable reform, and has done nothing therein.
In the affairs of party, and indeed of states, we take no part whatever, except in so far as they affect the interests of jurisprudence; and, above all, of the progress of improvement in our laws. Hence, we have no concern with the extraordinary position in which this and other countries are now placed by the dissolution arising from the so called reform measure of the Conservative government, or the disastrous war policy pursued on the Continent. Men had not ceased to marvel at the Conservatives, the adversaries of reform, taking reform matter in hand, and raising, by the kind of measure propounded, a clamour upon the subject, which all the efforts of its most strenuous advocates had failed to excite by their uttermost efforts of agitation, when the French absolute government-the enemy of all popular movement-the denouncer even of moderate constitutional policyproclaimed its adhesion to the cause of revolution in Italy. As was observed in jest-but the proverb says, that in jest many a true word is spoken-there seems so great a superabundance of liberty in France, that she can afford to export it. In the crisis which has arisen out of the false position both of the English and the French government, the interests of law amendment are so far concerned, that the cause of order at home and of peace abroad is the cause of legal improvement.
That the interests of law amendment are safe, whatever be the government established in this country, is to be hoped. We trust that no set of men, to whom the administration of our affairs can be intrusted, have it in their power to arrest the cause of improvement in our jurisprudence.
WE perceive, in a philanthropic journal of the temperance promoters, a laboured panegyric on Sir R. Jebb, who is described as the greatest philanthropist, and the successor of Howard. Captain Crofton is said to be, so far as he follows his plans, good in his way; but a mere secondary person. The truth is precisely the reverse; and the journal in which this ridiculous statement has been inserted, through the intervention of some ill-judging friend of Sir R. Jebb's, ought to have known better from the authoritative statements at the Social Science Congress at Liverpool, and their published transactions-a well-meaning work like the Meliora, injures itself by impairing its authority when it suffers parties so to practise on it.
Sir Matthew Richard Sausse, late puisne judge of the Supreme Court of Bombay, has been promoted to the Chief-Justiceship of that Court, and Mr. (now Sir Joseph) Arnould of the Home Circuit, is appointed to the Puisne Judgeship vacated by such promotion.
Mr. A. F. Lutwyche has been appointed Attorney-General of New South Wales, in the room of Mr. J. Martin, retired.
Mr. W. F. Higgins, barrister-at-law, and son-in-law of the Lord Chancellor, one of the Registrars of the Court of Bankruptcy, was appointed to a Mastership in Lunacy, vacated by the retirement of Mr. Edward Winslow. Mr. Scott, private secretary to the Lord Chancellor, was appointed Registrar of the Court of Bankruptcy in the room of Mr. Higgins, and Mr. Charles Palmer Phillips of the Equity bar was appointed to the post vacated by Mr. Scott. In consequence, it is said, of some observations made in the House of Commons relative to the appointment of Mr. Higgins, and of the discontent of the political clubs attached to the interests of the Conservative government, and to those of their own office-wanting members, Mr. Higgins was led to tender his resignation, which was accepted, and Mr. Samuel Warren, Q.C., M.P., &c. &c. (upon the unpalateable condition of resigning his seat in parliament), was appointed to the Mastership in Lunacy. Mr. Higgins and Mr. Scott resumed their duties as Registrar and Private Secretary respectively, and Mr. Phillips retired altogether from office. The Chancellor of the Exchequer stated in the House, that the Lord Chancellor had informed him that Mr. Higgins would not have been appointed to the office in question, had not the noble and learned lord been thoroughly convinced of his competency to fulfil its duties. On a subsequent day, Mr. Samuel Warren gave the House to understand that the mastership had not been sought by him; but on account of his peculiar fitness for the office it had been offered to him spontaneously by the Lord Chancellor. It is evident, therefore, that Mr. Higgins and Mr. Samuel Warren are equally wellfitted for the post in question; and under these circumstances we must lament that Mr. Higgins should have been deprived of a valuable appointment, and that Mr. Samuel Warren's parliamentary talents should be lost to his party and the country.
Mr. G. H. Cary, of the Chancery Bar, and late pupil of the SolicitorGeneral, has been appointed Attorney-General of British Columbia. Mr. Unthank, of the Northern Circuit, has been appointed Master of the Court of Queen's Bench, in the room of Mr. Bunce, deceased. The Recordership of Norwich, vacant by the death of Mr. Prendergast, Q.C., has been conferred on Mr. O'Malley, Q.C.
Mr. Caillard, Conveyancer and Equity Draftsman, has been appointed Judge of the County Courts of Bath and North Wilts (Circuit No. 52), in the room of Mr. J. G. Smith, deceased.
Mr. W. H. Adams, M.P., Recorder of Derby, has been appointed Attorney-General at Hong-Kong.